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"Best interests of the family pet" - not yet!

Canadians love their pets; they are often considered members of the family. As a family law lawyer, I am often asked about the law surrounding pets when a couple separates. Who is entitled to custody of the family pet? This is a difficult question to answer because although pets are living and breathing creatures (and very dear to our hearts) the Matrimonial Property Act in Alberta considers pets as property. This means that courts do not have jurisdiction to make custody or access orders with respect to a dog, rather only a declaration of ownership. In summary, the law will treat little Sparkie akin to a piece of furniture or jewelry when the matrimonial property is divided. 

Unfortunately this can be difficult for couples who consider their pet as part of the family and attempt to raise the issue of custody of the pet at trial. The case law clearly indicates that the principles normally applicable to the determination of custody of children ("the best interests of the children") are inapplicable to the disposition of a family pet.

In Ireland v. Ireland 2010 CarswellSask 830, the possession of the family pet, a chocolate Labrador retriever named Kadi was the subject of a one-day trial. Counsel for both parties acknowledged that Kadi was "family property" within the definition of subsection 2 of The Family Property Act, S.S. 1997. At paragraph 12 - 13 the Honourable Justice Zarzeczny held:

  • It must be stated that, as both counsel acknowledged, a dog is a dog. Any application of principles that the court might normally apply to the determination of custody of children are completely inapplicable to the disposition of a pet as family property. Any temptation to draw parallels between the court's approach in this case to the principles applied to settle child custody disputes must be rejected.
  • It is not the intention of the court, in making an adjudication upon this issue, to establish any principles at all for fear that by doing so the court may be seen to invite future applications or trials to deal with disputed claims to family pets as property.

Similarly in a recent British Columbia decision Kitchen v. MacDonald 2012 CarswellBC 119 the court held they did not have jurisdiction to make a custody or access order with respect to a dog. The court, in making the determination cited Warnica v. Gering [2004 CarswellOnt 5605 (Ont. S.C.J.) upheld on appeal]:

  • Of course, any pet is somewhat different, in that it does not readily lend itself to physical division. A pet could be sold, with the proceeds to be divided in accordance with any determination as to the parties' respective interests therein; however, that is something that few would want. Certainly it is something that no one wants here. A pet could be shared, as happened in the case of Rogers v. Rogers.14 In my view that would be akin to a custody access/order. Whether in the Family Court or otherwise, I do not believe that any court should be in the business of making custody orders for pets, disguised or otherwise. To the extent that any of my colleagues may feel otherwise, I respectfully disagree. Obviously, I acknowledge that pets are of great importance to human beings. Strong bonds develop between them and the human beings that look after them. To some people, the relationship with their pets takes on a significance exceeding that of any other. They go to extraordinary lengths to preserve that relationship; even at a cost that some would say is disproportionate. Some may consider them to be children; however, they are not children.

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